Author: Shardha Rajam & Mihika Poddar

On June 4, 2018, the Supreme Court of United States of America decided that the freedom to express religious beliefs would trump the right to equality. The case decided was simple – the owner of Masterpiece Cake Shop, Mr. Jack Phillips, refused to make a wedding cake for a same sex couple on religious grounds. The couple, Mr. Craig and Mr. Mullins protested against this discriminatory action and complained to the Colorado Civil Rights Commission. While the Commission decided in their favour, the Supreme Court did not, stating that the Commission’s decision negated Mr. Phillips’ rights under the First Amendment. Although seemingly straightforward, this case was never just about a wedding cake. It is about the right of individuals to be treated equally irrespective of their sexual orientation. In this blog, we examine the Court’s decision, amidst the protections afforded to LGBTI rights under international human rights law.

According to Mr. Phillips, making cakes is an expressive statement and a manifestation of his religious beliefs. Therefore, although the case involves aspects of free exercise of religion, the primary submission was regarding free speech as protected by the First Amendment. According to him, the Colorado Commission had in the past offered ‘some latitude’ to cake makers who refused to put messages they considered offensive. The Commission therefore should have allowed Mr. Phillips to refuse to make a cake against his ideological stance. To be forced to create a cake for an event which was fundamentally against his religious beliefs, was in fact forcing him to endorse a particular view. Mr. Phillips considered this to be an affront to his constitutional rights.

The Colorado Commission claimed that the Colorado Anti-Discrimination Act (CADA) prohibits discrimination by ‘public accomodations’ on the basis of race, sex, marital status or sexual orientation. The term ‘public accommodations’ includes any place of business engaged in any sales or services to the public, and specifically excludes churches, synagogues and mosques or any other place principally used for religious purposes. Further, the ‘latitude’ offered to cake makers in previous cases was not comparable to the present case, as it was not one particular message that Mr. Phillips refused to put – rather it was any cake for a homosexual wedding. Further, prior refusals by cake makers were also in sync with the CADA, as the cake makers had refused to put messages which demeaned gay persons. Finally, it was submitted that religion and religious beliefs cannot be carried to the public sphere, as is evident from the specific exclusion of religious places under ‘public accommodation’ in the CADA.

The Commission, first, refused to consider cake-making as a form of free speech, and second, held that the act of cake making did not force Mr. Phillips to adhere to an ideological viewpoint. Considering whether it was a free exercise of religion, the Commission held that CADA was a valid law of general applicability and therefore, did not violate the Free Exercise Clause. The Commission held that using the defense of religious beliefs for discriminating against a group, and even drew parallels to slavery and the holocaust. Considering such a defense to be despicable, the Commission passed a cease and desist order against Mr. Phillips, requiring him to stop discriminating against same sex couples by not selling what he would have sold to a heterosexual couple.

In the Supreme Court, the main focus was on the Commission’s actions as expressing a clear hostility against a religion, thereby compromising the ‘respectful consideration to which Phillips was entitled’. Centering the discussion on the constitutional prohibition on religious hostility, it overturned the ruling based on bias, without delving into the more controversial debate of religious freedom versus non-discrimination. It tactfully skirted the broader question of whether a business can refuse to serve gay people, saying this “must await further elaboration”. However, the omission to decide this question of law now may be interpreted by businesses to openly discriminate. Although it has been opined that the ruling is narrow, it is now evident that the battle for LGBT rights has merely shifted from the ‘altar to the cash register’, and the court has avoided any concrete protection against this discrimination. The Court has left several crucial questions unanswered, including the one most pertinent- if a gay couple goes to Masterpiece cake shop today, would Mr Phillips still have the right to refuse them their wedding cake? It is difficult to answer this from the Court’s ruling.

This is also worrisome when viewed in light of international human rights protections against discrimination based on sexual orientation. UN Treaty Bodies have reaffirmed regularly that sexual orientation is included among prohibited grounds of discrimination. This is no longer limited to a negative duty on the state to abstain from discrimination, rather, also imposes a positive obligation to protect from discrimination by third parties. For instance, the UN office of the High Commissioner, notes that without national laws that prohibit discrimination by third parties on grounds of sexual orientation, everyday discriminatory treatment continues unchecked, without any recourse to those affected. It identifies a specific obligation on States to prohibit such discrimination by enacting legislation and even providing education and training to prevent discrimination and stigmatization. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, noting how religious beliefs often have a compounding effect on discrimination faced by LGBT individuuals, identifies obligations upon states to take appropriate measures to prevent discrimination based on sexual orientation in both public and private spheres (Principle 2). The Yogakarta +10, expanding on these, requires States to identify the nature and extent of attitudes and practices that perpetuate discrimination and report on the measures undertaken, and their effectiveness (Principle 30).

In today’s market economy, businesses play a vital role in the socio-economic polity. It has become a social institution, like any other, access to which is key to fulfilling essential functions and maintaining one’s standard of living. Recognising their influence and significance, the UNHRC in 2017 developed Standards of Conduct for business to tackle discrimination against LGBTI people, where it specifically identifies a duty to prevent discrimination in the marketplace, respecting the human rights of customers.

Hindering access on the grounds of personal religious beliefs, despite a statute forbidding it, will not only affect crucial capabilities in a market-based economy, but will also be at odds with fundamental human rights protections. Today’s cake, may translate into other goods and services in the future, which may also be denied on the grounds of religious beliefs. The Colorado Commission’s contempt for a defense couched in religious beliefs was not to negate the sincerity of the belief itself, rather, it was for the apathy and discrimination that were the consequences of the belief. A robust non-discrimination framework to protect against third-party actions thus becomes essential.

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